The Director of National Intelligence and President Obama are fighting to keep the Senate from getting access to a list of FISA warrantless wiretap uses. They claim it would be "impossible" to generate such a list -- in other words, arguing transparency with respect to domestic spying is impossible. (Source: Joost)

Meanwhile Democratic Senator Dianne Feinstein (Calif.) is pushing for the renewal of the FISA Amendments Act -- a bill pushed by and passed into law by former President George W. Bush (R) in 2008. (Source: BoingBoing)

The bill grants immunity from lawsuits to cooperating telecoms, preventing them from potentially admitting to abuses of illegal warrantless surveillance of Americans. (Source: Reuters)

Some Senators are upset about efforts to stifle Senate review of FISA actions

During the terrorists attacks of September 11, 2001, much was lost by the people of the United States, including the lives of loved ones. Perhaps the most precious treasures lost, though, were the freedoms that Americans once took for granted. Today Americans have to endure invasive "enhanced searches" of their genital regions by Transportation Safety Administration agents and can be spied on over the phone -- without warrant -- thanks to the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA).

I. FAA Re-Up Leaves Door Open to New Abuses

The latter "Big Brother" legislation is slated to expire in 2012. And at a time when most expect them to be trying to negotiate a debt ceiling compromise, a group of Senators are believed to be debating something quite different. The Senate Select Committee on Intelligence is reportedly meeting behind closed doors. And reports indicate the topic of discussion is the renewal of the FISA Amendments.

Both the FISA and the FAA ostensibly subvert the protections provided by the Fourth Amendment of the U.S. Constitution, both directly and indirectly. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally courts have agreed that wiretapping was a violation of the protection against "unreasonable" searches.

However, in the FISA's case, the scenario was a bit murkier as it officially only allowed the warrantless spying on American citizens in cases where they were believed to be foreign spies (later amended by the PATRIOT Act of 2001, to include "terrorists" as well). Some would argue that in this case the search is not "unreasonable" and a warrant is not needed -- and further, in line with the Constitutional provision that Congress has the right to provide for "common defence", or designate representatives to do so.

Ironically, the FISA was designed to eliminate Fourth Amendment violations, and was put in place in the wake of accusations that President Richard Nixon (R) had used wiretaps to spy on political rivals. The act only allowed for warrantless wiretaps if one of the parties was "reasonably believed" to be outside the U.S.

That said, while well intentioned, perhaps the FISA leaves open the door to abuse by putting domestic surveillance mechanisms in place. While the bill criminalizes abuse, with a penalty of up to five years in jail, it has been difficult to prove abuse allegations against ranking federal officials.

That's where the FAA comes in. While officially providing yet more limitations on spying, those provisions are a smokescreen, many argue, for a key provision which grants participating telecommunications companies immunity from lawsuits about warrantless wiretaps.

President George W. Bush (R) is accused of criminally abusing the FISA, by some, using the domestic surveillance facilities to go well beyond spying on terrorists -- spying on politically motivated citizens as well. While these accusations achieved wide coverage, the actual investigation reached a dead end when the participating telecommunications companies refused to cooperate. And thanks to the FAA, they now have no fear of legal recourse for doing so.

In other words, the FAA isn't so bad in what it authorizes. Rather it is arguably dangerous as it removes transparency and accountability, when it comes to the dangerous topic of government playing "Big Brother".

II. Proposed Additions Supporting Transparency May be Voted Down

Senator Dianne Feinstein (D-Calif.) is the chair of the Committee on Intelligence and is a key proponent of renewal. She tried unsuccessfully, earlier this year, to slip through an extension until 2013. Now she's yet again battling for passage.

Supporting her is the Director of National Intelligence (DNI) James Clapper. His lawyer, Robert Litt, wrote a letter [PDF] to the intelligence committee last month stating, "The Act provides additional and critically important authority... to acquire foreign intelligence information on persons reasonably believed to be outside the U.S... We look forward to working with Congress to extend these important statutory tools."

Further the Mr. Clapper's staff are arguing to the Senate that it's impossible to release a list of the Americans monitored under FISA under the last several years -- information that could reveal signs of wrongdoing, or, alternatively, vindicate the program against such accusations.

Rather than let the facts speak for themselves, the DNI is trying to obfuscate that information, under the premise that it's too difficult to collect. Writes [PDF] his Congressional liaison, Kathleen Turner, "[It is] not reasonably possible to identify the number people located in the United States whose communications may have been reviewed under the authority."

The response was sent to Senators Ron Wyden (D-Oreg.) and Mark Udall (D-Colo.), who expressed concerns that citizens were being illegally spied upon outside the scope of the FISA, using FISA mechanism and resources.

The Obama administration has also expressed support of the FAA, and, reportedly, the work to keep the results of FISA hidden from the Senate.

Aside from the DNI's efforts to disallow the Senate from reviewing the program's actual actions, another troubling development is reported resistance to Sen. Wyden and Udall's proposed additions to the FAA.

The two Senators, both on the intelligence committee, have reportedly proposed the addition of language that further emphasizes the limitations of the FISA. For example, one paragraph reads:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

While not exactly removing the possibility of abuse, the new language seemingly couldn't hurt, by emphasizing the legal boundaries of the controversial practice of warrantless wiretaps. But amazingly, there's reportedly hesitance to add the language to the bill, though there's no clear reason why.

The U.S. people don't get to hear the debates within the committee, so they will have to wait until the committee brings the renewal before the full Senate, in order to find out if these additions indeed made it through.

You can repeal the law, but I doubt the wiretapping will actually stop. And you can't prove it cause it will violate some "state secret" or it's classified and will hurt national security, just to get the evidence in the first place.

If you mean the ones who wish to see the government operate within the law, then I guess I stand with the Conservatives.

President Obama, assuming the stories are correct, is very likely in violation of his oath of office. That is not a "conservative" stance, that is what every citizen should be looking at when deciding whether to allow a politician power...do they intend to uphold the constitution of the United States or do they intend to grant themselves illegal authority and make it a crime to find out what they are using that authority to do?

I particularly like the Intelligence Agency remarks where they say that they do not know who they were wiretapping. Yes they definitely remained within the authority of the Fourth Amendment when they collected information without documentation showing who they were tapping or at least a good reason for tapping unknown parties.

I still wonder what action the FBI actually took over illegal National Security Letters used by FBI investigators without the FISA Court warrant the law requires. Last I heard the FBI was insisting that breaking the law is not illegal, only an internal personnel matter and any and all action taken (even a note of no further action) is confidential & not to be made available to anyone outside the FBI including the agencies responsible for overseeing the FBI.

After all it is completely legal to issue a warrantless order demanding documents under threat of prison and accompany it with a threat of jail time if the order is mentioned to anyone other than the persons known to the recipient to be authorized to receive the information demanded.

This illegal use of the letters only came to light when someone broke the law by finding out that the FBI NSL was not known to the FISA court. Checking to see if such a letter has any legal standing can get you thrown in jail on a national security charge :P